(dissenting). Rebecca R. Smith, James B. Lamb, Ellen Clifford, and Isabella Clifford are brother and sisters, and the only surviving heirs of Jane Lamb, deceased. Rebecca R. Smith and Jane Lamb were twins. At the time Jane Lamb died, the record title to certain real estate was in her. The bill is filed for the purpose of having the title to an undivided one-half of the property decreed to be in complainant. The circuit judge granted the prayer of the bill. The defendants have brought the case here by appeal.
The record is long. Some testimony was taken that is incompetent, some that is immaterial, and some that is unreliable. Among other testimony offered by complainant is a deed of a farm purchased in 1867, taken in the name of the complainant and her twin sister, the deceased, Jane Lamb. This farm was sold, and another purchased with the proceeds, in 1871; the deed running to the complainant and her sister Jane. It is also made to appear that in 1873, when complainant wap in ill health, she conveyed her interest in the real estate to her sister Jane; whoafterwards reconveyed an undivided one-half of it back to Rebecca. In 1897 Rebecca again conveyed this land to her sister Jane, and the record title remained in her when *417she was killed upon the railroad. I have not overlooked the claim of defendants that these, conveyances were made to avoid paying debts, but, in view of the small amount of debts, I do not attach much importance to this claim. The lawyer who drew the last deed from Rebecca to Jane testified, in substance:
“ I remember seeing Jane Lamb and Rebecca Smith at my office, and having a conversation with them in relation to drawing a deed.
“ Q. Did they state why they wanted a deed drawn? * * *
“A. I cannot remember the exact conversation that took place at that time. I can remember the import of it. The talk between all parties at that time was concerning their both owning the property, but that they wanted it in shape that if one died the other would get it. * * * I told them they would better finish the whole transaction right there, but, as a matter of fact, they did not. They did part of it. I tried to get them to finish the transaction, but she promised to come down again, and she did come down,- — Miss Lamb.
“ Q. They were to make each one a deed to the other ?
“A. That was the idea.
“ Q. And then the one who died would have the property?
“A. That was the understanding when they were there at the office. They wanted to leave it in shape so that the survivor would get it.
“ Q. You made that deed with that understanding ?
“A. I made the deed with that understanding; yes, sir; that there would be a deed back; yes. * * *
“ Q. Do you remember now whether or not they talked over the fact of their living together and their owning this property, and the agreement between them that the survivor was to have the property, — it was to come to the children of Mrs. Smith ? * * *
“A. The talk that they had was that the one who survived should have the property. That was the talk at that time, and that was the intention when they made out the deed. At least, that was what they both of them told me. And this lady, Miss Lamb, came to the office after-wards to make out that deed, and I told her if she would come in we would make it right out; and she sa.id she had to go over town, and as quick as she came back she would *418see to it. When she came back I was prepared to make the deed, but she did not have the description, and I did not have it, and it ran along. She said she would come right in again, but, as a matter of fact, she did not.
“ Q. I hand you paper [deed from complainant to Jane Lamb], and ask you to look upon it and tell me whether that is the paper you made at that time for these people ?
“A. Yes; this is the instrument.”
No other consideration passed. The complainant continued to reside on the farm, and still resides there.
After sifting all the testimony,' and eliminating that which ought not to have weight, I am satisfied the circuit judge was justified in finding:
“ That Rebecca Smith and Jane Lamb were essentially one, in thought, interest, and, action. They lived for each other, and in rare intimacy. * * * The present lamentable condition of the complainant is due to the sudden and unexpected death of Jane Lamb., * * * That, in morals and justice, Rebecca Smith owns at least one-half of the property in question in the case. It was purchased with her money. It was never given away or sold by her. She never parted with the possession of it. She never intended to surrender it, except in the event of her death before the death of her sister. Certainly Jane Lamb did not take the title with any thought or intention of holding it as against Rebecca Smith. It was her purpose to restore it to its rightful owner.”
Does the statute of frauds stand in the way of affirming this decree, as claimed by the solicitors of defendants ? The statute referred to is section 9509, 3 Comp. Laws, which provides:
“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.”
The case is not free from difficulty. This is not a bill *419asking that the representatives of Miss Lamb be required to carry out her oral contract. The complainant does not seek to acquire interests in the lands by reason of an oral contract. The bill sets out all the facts, showing that the only consideration for the making of the deed by the complainant was' the agreement of Miss Lamb, which has not been executed, and that there has been an entire failure of consideration for the making of the deed, and asking that the deed made by the complainant be canceled, and the record title be restored to her. The defendants are not invoking the aid of the statute simply to avoid the necessity of complying with the contract made by Jane Lamb, but they seek to use it in such a way as to repudiate the contract, and at the same time retain the title to the land which was conveyed by the complainant in reliance upon the contract. If the facts are as stated by the lawyer who drew the deed, if, the next day after it was obtained, Miss Lamb had refused to carry out her part of the agreement, and insisted she was the absolute owner of the land, can there be any doubt about the right of a court to grant the complainant relief ? Does the fact that Miss Lamb died before carrying out her agreement prevent the court granting relief ? Do the heirs of Miss Lamb' stand in any better position than she ?
In Browne, Stat. Frauds (5th Ed.), 145, in discussing the effect of the statute of frauds, it is said:
“A party, however, who has paid money in fulfillment of a verbal contract, which the other refuses or becomes unable to carry out, may recover it in an action for money had and received; he may also recover property, or its value, delivered in the same way, by any suitable proceeding,” citing a large number of cases.
In Kilbourne v. Wiley, 124 Mich. 370 (83 N. W. 99), there is a discussion of the statute of frauds, where a solicitor sought to enforce an oral agreement that he should have a lien upon land for the value of his services in clearing up the title. The court quoted with approval from Huxley v. Rice, 40 Mich. 73, as follows:
*420‘“It is the settled doctrine of the court that, where a conveyance is obtained for ends which it regards as fraudulent, or under circumstances it considers as fraudulent or oppressive, by instant or immediate consequence, the party deriving title under it will be converted into a trustee, in case that construction is needful for the purpose of administering adequate relief; and the setting up the statute against frauds by the party guilty of the fraud or misconduct, in order to bar the court from effective interference with his wrong-doing, will not hinder it from forcing on his conscience this character, as a means to baffle his injustice or its effects. 2 Comp. Laws 1871, §§ 4692, 4693; 1 &tory, Eq. Jur. §§ 330, 333; 2 Story, Eq. Jur. §§ 1254, 1265; 1 Spence, Eq. Jur. 511; 2 Spence, Eq. Jur. 194, 294, et seg.; Hill, Trustees, 144; Mestaer v. Gillespie, 11 Ves. 621; Pickett v. Loggon, 14 Ves. 215, 234; Barnesly v. Powel, 1 Ves. Sr. 284, 289; Young v. Peachy, 2 Atk. 254, 257; Brown v. Lynch, 1 Paige, 147; Hutchins v. Lee, 1 Atk. 447; Wolford v. Herrington, 74 Pa. St. 311 (15 Am. Rep. 548); Gregory v. Williams, 3 Mer. 582.’
“See, also, Miller v. Aldrich, 31 Mich. 408.”
In Nugent v. Teachout, 67 Mich. 571 (35 N. W. 254), Nugent conveyed to Teachout 40 acres of land. The latter agreed orally to convey, as part payment for the land conveyed to him, an acre of land, and the house thereon. After he got the deed, Teachout not only refused to deed the acre of land, but sold it to a third party. Nugent sued Teachout. In holding that Nugent cbuld recover, the court said:
“But it must be remembered that this promise on the part of the defendant to convey the Cadillac property in part payment of the lands received by him was an oral one, and therefore within the statute of frauds, and one that he could not be obliged to perform. What, then, are the rights, and what is the remedy, of the plaintiff ? He has conveyed the 40 acres to the defendant, and the defendant has received it, and accepted the benefit of it. Does he not, in equity and good conscience, owe the plaintiff the balance of the price or value of the land in money ? Is there not an implied promise on the part of the defendant to pay the plaintiff the price or value of the land conveyed ? We think there is. Although he was not *421obliged to convey the Cadillac property, because his promise to do so was void under the statute of frauds, yet his refusal to convey had the effect to rescind the contract, and raised an implied promise to pay for what he had received upon it. Gray v. Hill, Ryan & M. 420; Basford v. Pearson, 9 Allen, 387, 392 (85 Am. Dec. 764).”
In Champion v. Munday, 85 Ky. 31 (2 S. W. 546), part of the consideration for a conveyance of land was an oral agreement that the vendee would give to the vendor the right of passage over lands not mentioned in the deed. In disposing of the case, the court said:
“As the deed was not signed by the appellant, nor any writing executed by him evidencing the appellee’s right to the passway, it is urged that the contract is within the statute of frauds, and cannot be enforced. If simply a passway over the land sold had been reserved by the deed, then, of course, this question would not arise; but the right is claimed to a passway through other land belonging to the appellant. Equity, following the law, will not enforce a contract within the statute. Here, however, it has been executed upon the part of the appellee, and the appellant accepted the deed and had it recorded. There is no offer by him to rescind. He placed the appellee in the use of the passway, while he is in possession of the property; and a court of equity will not, under these circumstances, permit him to hold it, and yet refuse to pay for it. If he declines the one, he must do the other; otherwise the statute would become a means of injustice, and enable a party to commit a fraud, thus defeating the very object of its enactment.”
In this case defendants retain the title conveyed by complainant to Jane Lamb. They do not offer to rescind the contract, but seek to retain all its advantages, and at the same time repudiate all obligations under it. The statute of frauds was passed to prevent frauds, and it ought not to be so applied as to perpetrate a fraud. If there is such a variance between the case stated in the bill and the proofs as to prevent justice being done, I think it a proper case to permit an amendment of the bill.
The decree of the court below should be affirmed, with costs to the complainant.